from the so-this-is-how-it-ends,-not-with-a-bang-but-with-a-bureaucrat dept

The Dumb Starbucks goes down, but for the least interesting reason possible. The sudden appearance of a coffee shop blatantly using Starbucks' trademarks (with the word "dumb" appended) and claiming something called "parody law" would save it raised several questions. First and foremost was: who the hell thinks they can get away with this?

The Los Angeles County Health Department shut down the Dumb Starbucks on Monday just as the man behind the faux coffee shop in the Los Feliz neighborhood revealed he was the host of a Comedy Central TV show.

The shop was closed for operating without a health permit, the department told the Los Angeles Times. A sign was posted on the front window of the store on Hillhurst Avenue on Monday evening, saying it was closed for violations.

The whole thing was simply a stunt for a Comedy Central show starring Nathan Fielder, who held a "tongue-in-cheek" press conference while wearing one of the famous (Dumb) green aprons. According to him, Comedy Central is only now aware of his promotional stunt.

The only people who could possibly have been seriously hoping Dumb Starbucks would act as a test case for fair use and parody would be those who would like to see fair use weakened. The store's "fact sheet," which "cited" fair use and "parody law," parked itself in the middle ground between ham-fisted and half-assed and gave every impression it was written by a copyright maximalist trying to be clever.

So, even if the abrupt end of the Dumb Starbucks franchise is rather anticlimactic, we can at least be grateful this publicity stunt didn't make its way through the court system, where it could have generated some bad precedent with its disingenuous take on fair use. For better or worse, Fielder stated at his faux press conference that he was thinking of opening up another store in Brooklyn, something Comedy Central might want to keep an eye on, considering comedy sometime relies very heavily on parody.

Re: Re: So, it really was a parody...

True, not all jokes are parodies, but this was making fun of starbucks specifically - a clear parody - rather than making fun of something else, some other company, and using starbucks IP to do it. Looks like parody to me. Whereas if it had been a "real" business, that wouldn't have been the case, or, at the very least, a very hard case to make.

Re: Re: Re: So, it really was a parody...

"this was making fun of starbucks specifically - a clear parody"

In trying to determine if it is a parody or not, you have to consider a bunch of things. The reality here is that the actions were done not for the sake of parody, as much as commercial gain and notoriety, trying to promote their commercial product (his show) rather than trying to make any great social commentary. The argument for this as parody is entirely lost when you see and understand the goal (which is discussion of a rather weak comedy show, I gather).

True parody has at it's heart the desire to actually make fun of, lampoon, or lambaste something. Slapping "dumb" in front of a company name and hoping that the media picks it up for cheap worldwide promotion isn't parody, it's weak tea (or coffee in this case). It's crap, and the guy will be lucky if he doesn't end up on the receiving end of a big ass lawsuit even with the place shut down. Then again, Starbucks is likely smart enough not to give this guy any more publicity that he has already had.

The only people who could possibly have been seriously hoping Dumb Starbucks would act as a test case for fair use and parody would be those who would like to see fair use weakened. The store's "fact sheet," which "cited" fair use and "parody law," parked itself in the middle ground between ham-fisted and half-assed and gave every impression it was written by a copyright maximalist trying to be clever.

So, even if the abrupt end of the Dumb Starbucks franchise is rather anticlimactic, we can at least be grateful this publicity stunt didn't make its way through the court system, where it could have generated some bad precedent with its disingenuous take on fair use. For better or worse, Fielder stated at his faux press conference that he was thinking of opening up another store in Brooklyn, something Comedy Central might want to keep an eye on, considering comedy sometime relies very heavily on parody.

I know you're just toeing the Techdirt line that Mike drew yesterday about this being a bad fair use case on both the copyright and trademark fronts, but let me ask you this: If this guy were sued tomorrow by Starbucks for both copyright and trademark infringement, would you really be siding with Starbucks? Given that you know the whole thing was a joke that only lasted a couple of days, you still think it would weaken fair use if he were to argue it? I'm trying to understand the Techdirt position that this isn't fair use. Frankly, it feels disingenuous.

Re:

I'm trying to understand the Techdirt position that this isn't fair use.

Well, it mainly wasn't copyright fair use because there was very little that was copyrighted that was copied. This is mainly a trademark case, and trademark fair use is far more limited; parody is not looked on very favorably in trademark, though it can be done.

But mainly I think that the issue is that 1) just putting the word 'dumb' in front of things doesn't feel to most people -- and possibly most judges -- like it's actually a parody. It's more like a perfunctory attempt at a parody, and probably an unsuccessful one.

And 2) their FAQ indicates that their purpose is really to leech off of Starbucks' goodwill and reputation, and that they are calling their use of the marks a parody as if that were a magic word that will get them off the hook. So not only did it feel like a threadbare claim of parody, it actually was one!

From their FAQ:

We are simply using their name and logo for marketing purposes.

By adding the word 'dumb' we are technically 'making fun' of Starbucks....

Although we are a fully functional coffee shop, for legal reasons Dumb Starbucks needs to be categorized as a work of parody art.

Are you saying Starbucks is dumb? Not at all. ... Unfortunately the only way to use their intellectual property under fair use is if we are making fun of them. So the 'dumb' comes out of necessity, not enmity.

It's a bit like the recent Zimmerman case; there is a valid reason for having self defense, but it didn't pass the smell test. The legal defense Zimmerman relied on was wicked strong due to the efforts of the gun lobby. But fair use, particularly for trademarks, which is mainly what is at issue here, is not strong.

I think your takeaway here should be that just because someone claims that they are relying on fair use (and Dumb Starbucks' FAQ makes it sound like they're thinking of the copyright doctrine, which is a mistake on their part) does not mean that people on Techdirt will agree. I don't see that we're obligated to, either.

Except the whole thing, including the FAQ, was fake.

If the store had been a real business rather than a Comedy Central joke I think you'd be right, and the FAQ would undercut any parody defense, but, as with many parodies, what they said literally, as in the FAQ, was not true and was part of the parody.

Re: Re: Except the whole thing, including the FAQ, was fake.

Their REAL intention was to create a show for broadcast that was based in parody. The FAQ is quite obviously part of the setup and not indicative of their true intentions. Creating this show for broadcast is obviously 1st amendment protected speech. Are you saying that reality TV shows like Punk'd are not entitled to 1st amendment rights due to the fact that the people on the show are not in on the joke?

Re: Re: Re: Except the whole thing, including the FAQ, was fake.

If the goal was to have a tv show which parodied Starbucks, it wasn't necessary to open a real store; the audience wouldn't know the difference.

If the goal was to pull a prank on members of the public, then what was the prank, and why did it require using Starbucks' marks?

I have no problem with practical joke shows on tv, other than that they're usually not very good. But I doubt you're arguing that people can do just any damn thing they like so long as they broadcast it. It might be nice to have an absolute free speech right, but the First Amendment won't protect all uses of copyrighted or trademarked material under current caselaw.

Re: Re: Re: Re: Except the whole thing, including the FAQ, was fake.

I'm not saying that the 1st amendment is all inclusive. However the argument that the FAQ is evidence of their real intentions when it has been revealed that that was part of the setup is flawed. And it appears that the goal was to make a TV show about pulling a prank on the public by parodying Starbucks.

And it appears that the goal was to make a TV show about pulling a prank on the public by parodying Starbucks.

So if I film myself and put it on YouTube -- effectively making it a TV show -- and I open up my own Apple Store, at which I sell computers bearing the Apple logo, but which actually might come from anywhere, this is okay? Because I claim that it's a prank?

Bullshit.

Pranking the public about a coffee shop doesn't require the use of the Starbucks trademarks, and parody in copyright and trademark is all about allowing the use of preexisting material to the extent that it is necessary, but not beyond.

If you setup a fake Apple store where you give away products bearing the Apple logo for the purpose of a filming a show about capturing people's genuine reactions to some outrageous actions where you are making fun of Apple and their policies. Then yeah. I'd say that's allowed.

If you are actually selling stuff with Apple's logo on it and merely claiming it's a prank just to get away with selling stuff yet there is nothing to show that a prank ever was even intended. Then no that wouldn't fly.

Mind you that the FAQ was part of the outrageous actions designed to spark a genuine response from the people to be filmed.

Look, I understand that you don't get performance art or how it works.

Giving away vs. selling is not a relevant distinction for trademark purposes. This was covered in the previous discussion about Dumb Starbucks. And let's assume that I absolutely film Fake Apple Store and put it all online, along with all the genuine reactions and such.

I'm still not going to get away with it. An emergency injunction will be sought, granted, and I will get shut down.

In fact, I was very surprised that even with it having been the weekend, that Starbucks didn't get this shut down ASAP. Perhaps they're used to operating at a more sedate pace. Someone like Kelly Tillery, who I met once, would've had this sorted within a day, I'm sure.

I may or may not understand performance art, but you sure as hell don't seem to know trademark law.

Or perhaps they realize what an absolutely horrible PR move it would be to fall for a baited attempt to get them to overreact and go into legal attack dog mode. They would be just asking to be mocked and made absolute fools of by people who make their living by making fools of people who do such things.

I do know this about trademark law. The Lanham Act was intended to address two problems. 1. Confusion for consumers faced with two similar products in the marketplace being marketed under the same mark and 2. Ensure fair competition between competitors in the marketplace with regards to competitors using trademarks in the marketplace. As Viacom isn't competing with Starbucks with a product that isn't similar to Starbucks' product and clearly stated that they were not affiliated with Starbucks such that people were not confused to think that they were Starbucks, this should not be applicable.

Sure, an attempt to use a loophole to get away with fraud would be but that is clearly not what this is.

According to the LA health Department...

The only people who could possibly have been seriously hoping Dumb Starbucks would act as a test case for fair use and parody would be those who would like to see fair use weakened.

Well, my first thought when I read the initial story is this looks like just the sort of ham fisted nonsense, like their "education" programs, that I'd expect to see from the likes of the MPAA or RIAA.

Right...because real fair use cases have shown to work out so well for the non-federally employed. What a waste of typing and mental acuity. The idea you guys defending "real" fair use (as if the deck is not built stacked)....borders on narcissistic and self-masturbation.

Make a bunch of videos with no humor or comedy at all and post them on YouTube under the channel "Not Comedy Central" with prominently featured Comedy Central/Viacom logos. Shows like "The Almost Daily Show" where the host just complains about the political news of the day and "Reno Casino 911" where you gamble on whether you're about to watch a good cop or bad cop. Put a FAQ on each video post that this is a protected parody, that we really like Comedy Central, and we're just using their logo to get subscribers while mocking Viacom.

Sit back and see how long it takes before your videos get taken down by Viacom and nasty legal threats appear. Wonder at the hypocrisy that it's OK when Viacom does it, but not you the common people.